ECO-STIM ENERGY SOLUTIONS, INC. (NASDAQ:ESES) Files An 8-K Termination of a Material Definitive Agreement
Item 1.02; Item 3.03 Termination of a Material Definitive
Agreement; Material Modification to Rights of Security
Holders.
As previously disclosed, on March 3, 2017, Eco-Stim Energy
Solutions, Inc. (the Company) entered into an Amended and
Restated Convertible Note Facility Agreement (the Note Agreement)
with FT SOF VII Holdings, LLC (Fir Tree). The Note Agreement was
executed in connection with Fir Trees purchase from ACM Emerging
Markets Master Fund I, L.P. and ACM Multi-Strategy Delaware
Holding LLC (collectively, ACM) of the Companys outstanding 14%
convertible notes due 2018 in the aggregate principal amount of
$22,000,000 issued to ACM in 2014 (the Existing ACM Note) and
2,030,436 shares of the Companys outstanding common stock, par
value $0.001 per share (Common Stock) held by ACM. to the terms
of the Note Agreement, the Company issued to Fir Tree a secured
promissory note (the Amended and Restated Convertible Note) in a
principal amount of $22 million, which replaces the Existing ACM
Note, and a secured promissory note (the New Convertible Note,
and together with the Amended and Restated Convertible Note, the
Notes) in a principal amount of approximately $19.4 million,
representing an additional $17 million aggregate principal amount
of convertible notes purchased from the Company by Fir Tree on
March 6, 2017 and approximately $2.4 million principal amount of
convertible notes issued to Fir Tree in payment of accrued and
unpaid interest on the Existing ACM Note acquired by Fir Tree
from ACM. The foregoing description is a summary of the Note
Agreement, does not purport to be complete and is qualified in
its entirety by reference to the full text of the Note Agreement,
which is filed as Exhibit 10.1 to this Current Report on Form 8-K
and incorporated herein by reference.
On June 20, 2017, the Company converted the Notes into Common
Stock at a price of $1.40 per share, and issued 29,538,786 shares
of Common Stock to Fir Tree (the Conversion), upon the Company
receiving stockholder approval at the Annual Meeting of
Stockholders of the Company on June 15, 2017. As such, all
obligations under the Note Agreement and Notes have been deemed
paid in full and the Note Agreement and the Notes have been
terminated. No termination penalty or fee was incurred in
connection with the termination of the Notes Agreement. The
Conversion reduced the Companys debt by approximately $41.4
million. Upon the issuance of the 29,538,786 shares of Common
Stock, Fir Tree beneficially owns 31,569,222 shares of Common
Stock, or approximately 70.84% of the Companys outstanding shares
of common stock that were issued and outstanding on May 15, 2017,
as reported in the Companys Quarterly Report on Form 10-Q for the
three months ended March 31, 2017, and a change of control of the
Company occurred.
The Common Stock issued to Fir Tree in connection with the
conversion are restricted securities. to the Registration Rights
Agreement, dated March 3, 2017, by and between the Company and
Fir Tree, Fir Tree has certain registration rights with respect
to the shares of Common Stock held by Fir Tree, including those
shares of Common Stock issued upon the Conversion.
Item 5.01 Changes in Control of the Registrant.
The information set forth in Item 3.03 of this Current Report on
Form 8-K is incorporated herein by reference.
As a result of the Conversion, a change of control of the Company
has occurred.
to the Amended and Restated Stockholder Rights Agreement, date
March 3, 2017 (the AR Stockholder Rights Agreement), Fir Tree has
the right to nominate three members of the Companys Board of
Directors (the Board). Messrs. David Proman, Andrew Teno and
Andrew Colvin, employees of Fir Tree, were appointed to the Board
to the AR Stockholder Rights Agreement, and were reelected to the
Board at the Annual Meeting of Stockholders of the Company on
June 15, 2017. A director nominated by Fir Tree may only be
removed, with or without cause, upon Fir Trees written request.
Fir Tree also has the right to designate for nomination a
substitute designee should a vacancy on the Board be created due
to the death, disability, retirement, resignation or removal of
any of its previously appointed designees. At this time, the
Company is not aware of any arrangements or understandings that
have been made in respect to a change of directors.
Security Ownership of Certain Beneficial Owners
The following table shows the beneficial ownership of the
Companys Common Stock as of June 21, 2017, by each person known
by us to be the beneficial owner of more than 5% of our Common
Stock, each of our directors and nominees, each of our named
executive officers, and our named executive officers and
directors as a group. Unless otherwise indicated, the business
address of each person listed is in care of 2930 W. Sam Houston
Pkwy N., Suite 275, Houston, TX 77043. The percentages in the
table are computed using a denominator consisting of the shares
of outstanding Common Stock as of June 21, 2017 plus the number
of shares of Common Stock issuable upon the exercise of all
outstanding options, warrants, rights or conversion privileges
held by each holder which are exercisable within 60 days of June
21, 2017. Except as otherwise indicated, the persons listed below
have sole voting and investment power with respect to all shares
of our Common Stock owned by them, except to the extent that
power may be shared with a spouse.
| Name and Address of Beneficial Owner | Number of Shares | Percentage of Class(1) | ||||||
| 5% Stockholders: | ||||||||
| FT SOF VII Holdings, LLC | 31,569,222 | (2) | 70.5 | % | ||||
| Bienville Argentina Opportunities Master Fund, LP | 2,979,534 | (3) | 6.7 | % | ||||
| Directors and Executive Officers: | ||||||||
| Bjarte Bruheim |
657,332 |
1.5 | % | |||||
| Chairman of the Board | ||||||||
| Jon Christopher Boswell |
485,861 |
1.1 | % | |||||
| Director, President and Chief Executive Officer | ||||||||
| Carlos Fernandez | 329,811 | * | ||||||
|
Executive Vice President-Corporate Business Development and General Manager- Latin America |
||||||||
| Bobby Chapman | 176,000 | * | ||||||
| Chief Operating Officer | ||||||||
| Alexander Nickolatos |
183,848 |
* | ||||||
| Chief Financial Officer and Assistant Secretary | ||||||||
| Christopher Krummel |
58,700 |
* | ||||||
| Director | ||||||||
| Andrew Teno | * | |||||||
| Director | ||||||||
| David Proman | * | |||||||
| Director | ||||||||
| Andrew Colvin | * | |||||||
| Director | ||||||||
| Donald Stoltz | 2,979,534 | (4) | * | |||||
| Director | ||||||||
|
All officers and directors as a group |
1,891,552 |
(5) | 4.2 | % | ||||
|
Total |
36,440,307 |
80.4 | % | |||||
* less than 1%
| (1) |
For each stockholder, this percentage is determined by assuming the named stockholder exercises all options which the stockholder has the right to exercise within 60 days of April 21, 2017, but that no other person exercises any options. |
| (2) |
Jeffrey Tannenbaum, as the Chairman of the board of directors of Fir Tree Inc., may be deemed a beneficial owner with voting and investment control over the shares held by Fir Tree. The business address of Fir Tree and Fir Tree Inc. is 55 West 46th Street, New York, New York 10036. |
| (3) |
Represents 1,471,838 shares held by Bienville Argentina Opportunities Master Fund, LP and 1,507,696 shares held by Bienville Argentina Opportunities Fund 2.0, LP (collectively, the Bienville Argentina Funds) as disclosed in the 13D filed with the SEC on April 14, 2017 by the Bienville Argentina Funds, Donald Stoltz and certain affiliated parties. The business address of Bienville is 521 Fifth Avenue, 35th Fl, New York City, NY 10175. |
| (4) |
Represents 2,979,534 shares owned by the Bienville Argentina Funds as disclosed in the 13D filed with the SEC on April 14, 2017 by the Bienville Argentina Funds, Donald Stoltz and certain affiliated parties. As the portfolio manager of the registered investment adviser to the Bienville Argentina Funds, Mr. Stoltz could be deemed to indirectly beneficially own the shares held by the Bienville Argentina Funds. Mr. Stoltz disclaims beneficial ownership of the shares, except to the extent of his pecuniary interest therein. The address of Mr. Stoltz is 521 Fifth Avenue, 35th Fl, New York City, NY 10175. |
| (5) |
Excludes shares that could be deemed to be indirectly beneficially owned by Donald Stoltz. |
Item 5.02. Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
On June 16, 2017, the Company entered into an employment
agreement with its Executive Vice-President of Business
Development and General Manager South America, Carlos A.
Fernandez (the Employment Agreement).
The Employment Agreement provides for an initial Base Salary (as
defined in the Employment Agreement) of $312,000 per year and a
target annual bonus equal to a maximum of one hundred percent
(100%) of Mr. Fernandezs Base Salary. In the event the Company
involuntarily terminates Mr. Fernandezs employment without Cause
or Mr. Fernandez terminates his employment with the Company for
Good Reason (each as defined in the Employment Agreement and in
each case, a Termination Event), and subject to Mr. Fernandez
delivering to the Company an executed Release (as defined in the
Employment Agreement), the Employment Agreement provides for a
payment of an amount equal to his Base Salary payable for one
year (the Severance Payment), at the rate in effect immediately
before the Termination Event. The Severance Payment is payable in
a lump sum on the first payroll date on or immediately after the
sixtieth (60th) day following the Termination Date (as
defined in the Employment Agreement), provided that the Release
has become effective on such date in accordance with its terms.
Equity or equity-based awards will be treated in accordance with
the applicable plan and award agreement.
The Employment Agreement also contains covenants regarding
non-competition, non-solicitation, conflicts of interest,
confidentiality and work product, among other terms and
conditions.
The foregoing description of the Employment Agreement does not
purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Employment Agreement, which is
filed as Exhibit 10.2 hereto.
As previously disclosed, on June 15, 2017, at the annual meeting
of stockholders (Annual Meeting) of Eco-Stim Energy Solutions,
Inc. (the Company), the Companys stockholders approved the Second
Amendment (the Second Amendment) to the Eco-Stim Energy
Solutions, Inc. 2015 Stock Incentive Plan (the Plan) to increase
the number of shares authorized for delivery thereunder by an
additional 5,000,000 shares and clarify the intended scope of
certain limitations set forth in the Plan. As a result, the
Second Amendment became effective as of June 15, 2017.
A copy of the Second Amendment is attached hereto as Exhibit 10.3
and is incorporated herein by reference. The foregoing summary is
qualified in its entirety by the complete terms and conditions of
the Second Amendment and the Plan. A description of the material
terms of the Plan, as amended by the Second Amendment, was
included in the Companys definitive proxy statement on Schedule
14A filed with the Securities and Exchange Commission on May 15,
2017, which was later supplemented on June 8, 2017.
Item 9.01 Regulation FD Disclosure.
(d) Exhibits.
| Exhibit Number | Description | |
| 10.1 |
Amended and Restated Convertible Note Facility Agreement, dated as of March 3, 2017, by and between Eco-Stim Energy Solutions, Inc. and FT SOF VII Holdings, LLC (Incorporated by reference to the Companys Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on March 9, 2017.) |
|
| 10.2 |
Employment Agreement by and between Eco-Stim Energy Solutions, Inc. and Carlos A. Fernandez, effective as of April 1, 2017. |
|
| 10.3 | Second Amendment to the Eco-Stim 2015 Stock Incentive Plan. |
Eco-Stim Energy Solutions, Inc. ExhibitEX-10.2 2 ex10-2.htm EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT (“Agreement”) is effective as of April 1,…To view the full exhibit click here About ECO-STIM ENERGY SOLUTIONS, INC. (NASDAQ:ESES)
Eco-Stim Energy Solutions, Inc. is an oilfield services company. The Company provides well stimulation, coiled tubing and field management services to the upstream oil and gas industry. The Company focuses on the active shale and unconventional oil and natural gas basins outside the United States and it has commenced operations in Argentina. The Company operates well stimulation fleets, coiled tubing units and other downhole completion equipment, as well as provides sweet spot analysis in shale resource basins using geophysical predictive modeling combined with real-time feedback from down-hole diagnostic tools. The Company offers a pumping fleet, including well-stimulation pumps, nitrogen pumping units and cranes, in both trailer-mounted and skid-mounted configurations. It provides a range of pressure-pumping services, including work-over pumping, well injection and wireline pump downs.